Good Bye, Liberal–Legal Democracy
Law & Social Inquiry
Every other day, books and articles are published that examine the withering of democracy across multiple national contexts, perhaps best summarized by Steven Levitsky and Daniel Zibblat’s How Democracies Die. The law has not been ignored in this burgeoning literature. Telling examples are the studies on autocratic legalism by Javier Corrales and Kim Lane Scheppele; Tom Ginsburg and Aziz Huq’s book How to Save a Constitutional Democracy; a recent review essay by Michael McCann and Filiz Kahraman on the “interdependence of liberal and illiberal legal orders … in the United States”; and two forthcoming works from the Project on Autocratic Legalism: a special issue in the Verfassung und Recht in Übersee/World Comparative Law journal and a book on Brazil edited by Oscar Vilhena Vieira and colleagues. In this review essay, I focus on three critical issues arising from these and other sources. First, they show that a backlash against liberal democracies is happening in both the global South and the global North. Second, they show that law is no longer thought of as an intrinsic bulwark against assaults on liberal democracy—on the contrary, rising autocrats, many of whom are trained lawyers, often use the law as a tool to consolidate power, sideline minorities and political adversaries, and rule unconstrained. Finally, while earlier analyses of this phenomenon have tended to emphasize legislative change that reconfigured governance at its highest levels (the Presidency or Prime Minister’s Office, Congress, and High Courts), new studies are revealing––and are helping constitute––an empirically broader field of inquiry.
Special Issue on Autocratic Legalism
VRÜ/World Comparative Law
Since the 2000s, scholars have been faced with a new phenomenon, which political scientists eventually labelled democratic backsliding. Law has not been central in studies of democratic backsliding, but it has not been completely absent either. In the mid-2010s, scholars––mostly from political science and con-stitutional law––began tracing the links between legal norms/institutions and the degeneration of democracies in countries such as Venezuela, Hungary, Turkey, Russia, and Ecuador. These studies found that law had become central to the toolkit used by leaders with autocratic dispositions to undermine liberal democracies from within, while cloaking their moves in legal forms. Corrales called this practice ‘autocratic legalism’; Scheppele elaborated on this notion and popularized it in the law and society community. In 2019, a group of scholars from Brazil, India, and South Africa created a project to investigate the antidemocratic uses of law across the Global North–South. In homage to Scheppele, they labelled this the Project on Autocratic Legalism (PAL). This special issue reports on initial findings from PAL.
Autocratic legalism in India: A roundtable
Jindal Global Law Review
At a moment when democracy seems to be experiencing an unprecedented level of crisis worldwide, this roundtable focuses on one country, India, to ask what we can learn from its ongoing challenges. The participants take as their starting point Scheppele’s idea of ‘autocratic legalism’, in which constitutional democracies are ‘hijacked by … legally clever autocrats’ who turn democratic institutions and values against themselves. Does autocratic legalism capture developments in India, particularly since 2014? Does the concept help identify weaknesses or untapped potential in Indian democracy? Or does the crisis of India’s democracy reflect different patterns from the autocratic legalism emerging in other parts of the world? Participants consider these and other questions during a conversation that bridges disciplines, geography, and the academy–legal profession divide.
Law and Illiberalism: A Sociolegal Review and Research Road Map
Fabio de Sa e Silva
In democratic backsliding, threats to democracy no longer come from abrupt, radical ruptures promoted by those who are close to, but outside of, state power. They come from those who win elections and, while in office, systematically undermine accountability institutions and minority rights. Zakaria used the term illiberal democracies to describe these regimes where popularly elected governments are divorced from political freedoms and accountability. Law is not absent from these stories. Rising autocrats seek to make their moves legal and use law—as a weapon or as a shield—in attempts to amass power and suppress opposition. Authors coined the term autocratic legalism to describe these power-grabbing tactics that operate through law. Others use different concepts, such as constitutional retrogression or abusive constitutionalism. I review this growing body of literature and outline a research agenda on the encounters between law and illiberalism.
Expected final online publication date for the Annual Review of Law and Social Science, Volume 18 is October 2022.
Combating Authoritarianism: Will sanctions on Russia be effective?
In response to Russia’s invasion of Ukraine, countries around the world have imposed an unprecedented array of sanctions. But will these economic weapons compel Putin to change course in Ukraine? Will they lead to political instability and unrest in Russia? Will the sanctions fuel the ambitions of Russian coup plotters? To answer such questions, this paper looks at what can be learned from the literature on sanctions.